Exhibit 10.20
STREAMLINE, INC.
WAIVER AND MODIFICATION AGREEMENT
This Waiver and Modification Agreement (this "Agreement"), dated as of
September 18, 1998, is made by and among Streamline, Inc., a Delaware
corporation (the "Company") and the holders of record of all of the outstanding
shares of the Company's Series A Convertible Preferred Stock, par value $1.00
per share ("Series A Preferred"), Series B Convertible Preferred Stock, par
value $1.00 per share ("Series B Preferred"), and Series C Convertible Preferred
Stock, par value $1.00 per share ("Series C Preferred") (such holders,
collectively, the "Investors").
WHEREAS, the Company, Reliance Insurance Company ("Reliance") and
Xxxxxxx X. XxXxxxx entered into a certain Series A Preferred Stock Purchase
Agreement, dated May 15, 1996 (as amended from time to time, the "Series A Stock
Purchase Agreement"), pursuant to which Reliance purchased 50,000 shares of
Series A Preferred;
WHEREAS, the Company, Reliance, Intel Corporation ("Intel") and
PaineWebber Capital Inc. ("PaineWebber", and together with Reliance and Intel,
the "Initial Series B/C Investors"), entered into a certain Stock Purchase
Agreement, dated June 13, 1997 (as amended, the "Series B/C Stock Purchase
Agreement"), pursuant to which the Initial Series B/C Investors purchased an
aggregate of 20,000 shares of Series B Preferred and 10,000 shares of Series C
Preferred;
WHEREAS, the Company, the Initial Series B/C Investors, General
Electric Capital Corporation ("GE Capital") and SAP America ("SAP", and together
with GE Capital, the "New Series B/C Investors") entered into that certain
Waiver and Modification Agreement, dated September 23, 1997 (the "Waiver and
Modification Agreement") pursuant to which the Initial Series B/C Investors and
the New Series B/C Investors (the "Series B/C Investors") purchased an aggregate
of 60,000 shares of Series B Preferred;
WHEREAS, the Company and the Series B/C Investors are parties to a
certain Registration Rights Agreement, dated June 13, 1997 (the "Series B/C
Registration Rights Agreement");
WHEREAS, the Company and Nordstrom, Inc. ("Nordstrom") propose to enter
into a certain Stock Purchase Agreement (the "Series D Stock Purchase
Agreement"), pursuant to which Nordstrom proposes to purchase up to 228,570
shares (the "Series D Preferred Shares") of Series D Convertible Preferred
Stock, par value $1.00 per share, ("Series D Preferred");
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WHEREAS, to facilitate the sale and issuance by the Company of the
Series D Preferred Shares, the Company and the Investors wish to amend the
Series A Stock Purchase Agreement, and the Series B/C Stock Purchase Agreement,
(collectively, the "Purchase Agreements") and to waive certain pre-emptive
rights as provided herein;
NOW, THEREFORE, the parties hereto, in consideration of the premises
and the mutual covenants and agreements herein contained, and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, hereby agree as follows:
I. SERIES A STOCK PURCHASE AGREEMENT
SECTION 1. AMENDMENT TO THE SERIES A STOCK PURCHASE AGREEMENT
The Company and Reliance hereby amend the Series A Stock
Purchase Agreement by deleting Section 9.8 thereof in its entirety.
II. SERIES B/C STOCK PURCHASE AGREEMENT
SECTION 1. AMENDMENT TO THE SERIES B/C STOCK PURCHASE AGREEMENT
The Company and the Series B/C Investors hereby amend the
Series B/C Stock Purchase Agreement by deleting Section 6.7 in its
entirety.
III. SERIES B/C REGISTRATION RIGHTS AGREEMENT
SECTION 1 AMENDMENT TO SERIES B/C REGISTRATION AGREEMENT
The Company and the Series B/C Investors hereby amend the
Series B/C Registration Rights Agreement by inserting the following as
Section 2.6 thereto:
2.6 CONSENT FOR FIRST UNDERWRITTEN PUBLIC OFFERING
Notwithstanding anything in this Section 2 to the contrary,
the Company shall not be required to cause to be registered
any Registrable Shares pursuant to Section 2 prior to the
Company's first underwritten public offering without the
written consent of at least a majority of the then outstanding
shares of the Company's Series D Convertible Preferred Stock,
$1.00 par value per share.
IV. CONSENT TO REGISTRATION RIGHTS AGREEMENT
Each of the Investors hereby consent to the Company's entering into a
Registration Rights Agreement, substantially in the form attached hereto as
EXHIBIT A,
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with Nordstom and the Company's grant to Nordstrom of the registration rights
provided for therein.
V. WAIVER OF PREEMPTIVE RIGHTS
Each of the Investors hereby waive such preemptive rights as such
Investor may have from time to time, pursuant to Article Fourth, Section B.8 of
the Company's Certificate of Incorporation, as in effect on the date hereof (the
"Charter") with respect to (i) the issuance by the Company to Nordstrom of up to
200,000 shares of Series D Preferred, (ii) the issuance by the Company of
additional shares of Series D Preferred in payment of any dividend that may
accrue with respect to any shares of Series D Preferred, all in accordance with
Section B.2(a)(v) of the Charter; (iii) the issuance by the Company of shares of
the Company's Common Stock, par value $.01 per share ("Common Stock") upon
conversion of shares of Series D Preferred; and (iv) the issuance by the Company
to the holders (the "Debtholders") of the Company's Senior Discount Notes due
April 15, 2001, of an aggregate of 10,000 shares of Common Stock pursuant to the
terms and conditions of that certain Warrant Modification Agreement, dated on or
about the date hereof, by and among the Company and the Debtholders.
VI. GENERAL PROVISIONS
SECTION 1. RATIFICATION.
Except to the extent amended by this Agreement, all of the terms,
conditions and covenants of the Purchase Agreements are hereby ratified and
confirmed and remain in full force and effect.
SECTION 2. ENTIRE AGREEMENT.
The Purchase Agreements, and this Agreement together with the other
writings referred to therein and herein and/or delivered pursuant thereto and/or
hereto, contain the entire agreement among the parties with respect to the
subject matter thereof and hereof and shall be read and construed together as a
single agreement.
SECTION 3. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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SECTION 4. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed entirely within the state without regard to principles of conflicts of
law.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the day and year first above written.
STREAMLINE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
INVESTORS:
RELIANCE INSURANCE COMPANY
on behalf of itself and its nominee, HARE & Co.
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Vice President
PAINEWEBBER CAPITAL INC.
By: /s/ Xxxxxxxxx Xxx
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Xxxxxxxxx Xxx
President
INTEL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Vice President and Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Managing Director-ECG
SAP AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President
